What is a constitution?

"A social contract between the people and their government" - McNaughton

A constitution underpins the workings of a political system;can usefully be seen as a 'power map' i.e one indicating the distribution of political power across the key institutions of executive, legistalure and judiciary.

It sets out the basis upon which the people agree to be ruled and the government agree to act within strictly defined rules limiting their power to do as they wish

Within these rules provision is made to protect the civil liberties of the people and to set out the procedure by which the Constitution can be altered.

Codified - written in a single document, also entrenched and superior as forms of law e.g the US Constitution

Uncodified - can be written but not in one single document e.g the UK constitution has various sources from which it has developed.

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Is there a UK Constitution?

No

It is uncodified - it is therefore not organised into any single document but is scattered amongst many different or 'eclectic' sources and one part is unwritten (conventions). Conventions are therefore difficult to precisely define and are open to interpretation.

Constitutional statutes do not necessarily have more authority than other statutes (even though they may be seen to have such authority)

Tradition is a very powerful influence in th UK. Governments are reluctant to infringe independence of the Judiciary, freedom of expression etc

The public act as guardians of the constitutional principles by voting out governments that have offended against these principles.

There are accepted forms of constitutional rules.

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Sources of the UK Constitution - Statute Law

Statute Law

Statute law is law made by Parliament (Acts of Parliament/primary legislation) which is a formal, written law.

Not all of these are of constitutional significance but those that affect the powers and responsibilities of government bodies or the rights and freedoms of citizens are of great significance.

Statute law has traditionally been considered the single most important source of the constitution as statute law ‘out ranks’ all other sources of the constitution; if there is a conflict between statute law and another source of the constitution, statute law has generally proved superior and prevailed.

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Sources of the UK Constitution - Statute Law 2

For example, in 1911 and 1949 Parliament Acts limited the powers of the House of Lords. The European Community Act of 1972 authorised the UK’s membership of the EC. In 1998 the Scotland Act established a Scottish Parliament.

In 1998 the Government of Wales Act established Welsh Assembly

In 1998 the Human Rights Act translated the European Convention on Human Rights into a statute law.

In 1999 the House of Lords Act excluded all but 92 hereditary peers from sitting in the House of Lords.

In 2000 the Freedom of Information Act gave citizens a legal right of access to government information.

In 2005 the Constitutional Reform Act provided for a Supreme Court to take over the role of the Law Lords.

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Sources of the UK Constitution - European Law

European Law

However, European Law is growing in it’s power and may soon appear as higher in status within the British Constitution.

In 1973 the UK became a part of the EU and is now subject to the body of European laws and treaties, and the significance of those laws have gradually increased in Britain.European bodies have grown in importance due to the periodic process of European integration.

The question of whether European law should be considered as the most important source of the British Constitution, has lead many to question and debate the significance of parliament’s supposed sovereignty in a context of EU membership but, so far, no clear conclusion has been reached. However, very recently, at the Conservative Party conference, David Cameron made a commitment to hold a referendum before any further powers would be transferred to Europe. He remains opposed to any treaty change that might result from the Euro zone crisis.

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Sources of the UK Constitution - European Law 2

The EU has introduced some important laws and treaties, for example the Single European Act of 1986. This established a single market within the EC, ensuring the free movement of goods, services and capital. It also introduced political union in the form of the EU in 1992, the Treaty on European Union (TEU). However, the UK does not include itself in all of the EU’s endeavors; the UK did not support the introduction of the Euro and negotiated into continuing the use of the British pound.

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Sources of the UK Constitution - Common Law

Common Law

This refers to a body of laws that are based on tradition, custom and precedent, but have come to hold legal status.

It is law developed by judges (on a case-by-case basis) through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action.

A “common law system” is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions; judgements in similar cases are taken to be binding on later cases. Statute law is ‘politician-made’ law and common law can be seen as ‘judge-made’ law, however statute law holds more power.

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Sources of the UK Constitution - Common Law 2

Common law included in Constitutional rulings include:

The Royal Prerogative: a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the Sovereign alone. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of their state, are carried out. Individual prerogatives can be abolished by Parliament, although in the UK special procedure applies. In England, while prerogative powers were originally exercised by the monarch acting alone, without an observed requirement for parliamentary consent (after Magna Carta), since the accession of the House of Hanover they have been generally exercised on the advice of the Prime Minister or the Cabinet, who in turn is accountable to Parliament, exclusively so, except in matters of the Royal Family, since at least the time of Queen Victoria.

Traditional Rights and Freedoms: Before the Human Rights Act in 1998, the courts recognized ‘residual’ rights. Residual rights rested on the common law assumption that “everything is permitted if it is not prohibited”.

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Sources of the UK Constitution - Conventions

Conventions

A key unwritten element of the constitution. They are non-legal, lack clear and unambiguous definition. They are upheld by practical political circumstances; they make politics ‘workable’.

A convention is an accepted way in which things are done. They are not written down in law but tend to be old, established practices – the way they have always been done. Though these conventions are not set in legal stone, their very existence over the years has invariably lead to the smooth operation of government. This, again, is an argument for an unwritten, uncodified constitution. If the ways of governmental working were set in stone and had been for years (through a codified constitution), could government evolve and develop and mould to society’s change if the way government works was rigidly stated in a written constitution?

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Sources of the UK Constitution - Conventions 2

Major constitutional conventions include:

The exercise of Crown Powers - The queen will accept the legislation passed by the government and give parliamentary legislation the Royal Assent. It is almost beyond belief that she would not do so – the public backlash against an unelected person rejecting what a democratically elected government has pushed through would almost certainly be massive.

Individual ministerial responsibility - This broadly defines the relationship between ministers and their departments, defines the relationship between ministers and their departments, & grounds on which ministers should resign.

Collective ministerial responsibility - This defines the relationship between minsters and the cabinet, between government as a whole and Parliament; it determines that the government should resign or call a general election if it loses ‘confidence’ in the House of Commons.

The appointment of Prime Minister - The monarch appoints as prime minister the leader of the largest party in the House of Commons or the politician who is likely to command the confidence of the House of Commons (Hung Parliament)

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Sources of the UK Constitution - Works of Constitu

Works of authority in the British Constitution are books written by constitutional theorists that are considered part of the constitution. The need to consult works by authors who are considered to be authorities on constitutional issues is an odd and interesting factor within the UK Constitution. It helps to define what is constitutionally ‘proper’ or ‘correct’. However, though they are written, they are not legally enforceable.

- There is much confusions within the uncodified British Constitution; these works of constitutional authority help to clarify in cases of conventions and how general rules and principles should be carried out.

- They help to interpret what is actually meant by the constitution.

However, they still lack legal authority and are only followed if considered to be relevant and reliable.

Walter Bagehot’s The English Constitution provides the classic definition of the role of the prime minister. A.V Dicey’s An Introduction to the Study of Law of the Constitution defines the “twin pillars” of the constitution: parliamentary sovereignty and the rule of law.

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Weaknesses of the UK Constitution 1

Statute is supreme over other constitutional authorities; this point being so, governments with large majorities [e.g Margaret Thatcher 1983 & 87 or Tony Blair 1997 & 2001] could potentially act dictatorially to repeal/amend key Acts of Parliament to the detriment of ordianry people's rights.

This was the charge by the Countryside Alliance pressure group when the Blair government banned hunting with dogs in 2004, espeically so given that Blair had to use the Parliament Act 1949 to force the Hunting Act through over Lords' objections.

Therefore, an Act of Parliament (theoretically) can change/abolish any point of Common Law, right to public protest etc.

The British Constitution is widely seen as opaque and romote, certainly for those citizens who lack a decent education and/or verbal & comprehension skills.

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Weaknesses of the UK Constitution 2

Statute is controlled by Parliament (at least, the 'order of play' of government business in the Commons & Lords) and Parliament is controlled by the governing party. The Leader of the House is a cabinet-level position, and, crucially, through that post the executive:

- Effectively 'dictates' government business in Parliament (most obviously in the Commons)

- Allots government times for legislation to be 'reviewed' and ideally 'scrutinised' (but remember that Westminster pariament is only a legislation-review body and can not initiate it)

-Private Members' bills have virtually no chance of becoming an Act of Parliament without them being adopted by the party of government for 'passage' through the legislative process.

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Arguments AGAINST a codified Constitution

Would harm the efficiency of government - the present system allows laws to be passed quickly to deal with urgent matters

Would prevent flexibility which currently allows government to adapt to change. E.g in the USA presidential attempts to quickly adapt to crises have been rejected by the Supreme Court using the Constitution.

Would end 'Parliamentary Sovereignty' and therefore undermine many of the institutions that the government is based on, destroying traditions which uphold the British political system.

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Arguments FOR a codified constitution

To limit executive power which controls Parliament through an elected Commons majority. The aim would be to disperse power more widely.

The need for less centralised control from Westminster and greater powers for local government

The need to define and limit prerogative powers and put them under control of Parliament not government.

Individual right not protected enough by the Human Rights Act 1998 (A number of civil liberties experts claim)

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Arguments FOR a codified constitution

To limit executive power which controls Parliament through an elected Commons majority. The aim would be to disperse power more widely.

The need for less centralised control from Westminster and greater powers for local government

The need to define and limit prerogative powers and put them under control of Parliament not government.

Individual right not protected enough by the Human Rights Act 1998 (A number of civil liberties experts claim)